The FCC’s controversial net neutrality rule won an important round in federal court this week; however, the legal battle is not over. By a 2-1 margin, a three-judge panel of the D.C. Circuit Court of Appeals issued a sweeping ruling for the FCC’s 3-2 decision to unilaterally assert authority over internet providers under Title II of the Communications Act, which allows for the regulation of “common carriers” as public utilities.
Reaction to the decision differed greatly on the two sides of the political aisle. Democrats in Congress and at the FCC were pleased. Indeed, FCC Chairman Tom Wheeler called it a “victory for consumers and innovators who deserve unfettered access to the entire web” and one that “affirms the Commission’s ability to enforce the strongest possible internet protections – both on fixed and mobile networks.” However, Republicans generally were unhappy. For example, Senate Commerce Committee Chairman John Thune (R-S.D.) said, “Rather than providing internet users and companies alike with the regulatory certainty they need to thrive, we instead now have a highly political agency micromanaging the internet ecosystem. Today’s decision is a clear signal that my colleagues and I need to reestablish Congress’ appropriate role in setting communications policy on a bipartisan basis.” More blistering was the response of FCC Commissioner Michael O'Rielly (R). He anticipated this fight going to the Supreme Court, but warned:
If allowed to stand, however, today’s decision will be extremely detrimental to the future of the internet and all consumers and businesses that use it. We all will rue the day the Commission was confirmed to have nearly unmitigated power over the Internet — and all based on unsubstantiated, imaginary “harms.” More troubling is that the majority opinion fails to apprehend the workings of the internet, and declines to hold the FCC accountable for an order that ran roughshod over the statute, precedent, and any comments or analyses that did not support the FCC’s quest to deliver a political victory. It also confirms why every parliamentary trick in Congress was used to pack this particular court.
NRB last year called this FCC ruling a “power grab.” In public comments submitted in the rulemaking process, NRB had urged against heavy-handed government action and instead for respecting “free speech, free exercise of religion, and a free press for citizen user-generated content” and “free enterprise innovation regarding Internet services, applications, and devices.”
By Aaron Mercer, Vice President of Government Relations
Published: June 17, 2016